Wallace v. Boston Elevated Ry. Co.

• Decision Date: 28 February 1907
• Parties: WALLACE v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 328

80 N.E. 461

WALLACE v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

February 28, 1907

COUNSEL

Albin L. Richards, for petitioner.

John T Hughes, for defendant.

OPINION

HAMMOND J.

At the hearing the court found that the allegations that the father who was the next friend, was intoxicated and mentally incapable at the time he signed the agreement, were untrue. No fraud or collusion was alleged. The powers and duties of a next friend in a case like this were considered in Tripp v. Gifford, 155 Mass. 108, 29 N.E. 208, 31 Am. St. Rep 530. In that case the following language is used by Barker, J.:

'We see no reason why the next friend should not have authority to institute or to entertain negotiations for a settlement of the controversy. His position with reference to it is like that of a general guardian, or the guardian ad litem of an infant defendant. It is to be expected that he will act fairly and intelligently for the real interest of the plaintiff; but it cannot be said that every suit brought in the name of the infant is upon a good cause of action, or that, if well brought, the just amount of the recovery cannot be arrived at without a trial. * * * The next friend is intrusted with the rights of the infant so far as they are involved in the cause, and acts under responsibility both to the court and to the plaintiff. It may well be considered to be within his official duty to negotiate, if possible, a fair adjustment, without subjecting the plaintiff to the expense and risk of a trial.

'When, however, he assumes finally to conclude a settlement out of court, and to discharge the cause of action by an agreement in pais, under which he accepts less than the plaintiff's entire demand, he does more than is clearly within his authority to prosecute the action, and more than we think ought to be allowed with due regard to the protection of the infant. Unless such a settlement is affirmed, either in terms if brought to the attention of the court, or by an entry of judgment in regular course, it may fairly be held invalid. If it is not of such a nature as to commend itself to counsel, to whom, as well as to the next friend, the infant has a right to look for protection, it ought not to stand unless sanctioned by the court. It is no injustice to a defendant to hold that the infant is not concluded until the cause is disposed of by judgment.'

In the case before us the court found that certain acts of the next friend were tantamount to his discharge of the counsel whose name was upon the record as counsel for the plaintiff. But...